International Investment Law – Moot Court

International Investment Law – Moot Court

Eco Oro Minerals Corp. v. The Republic of Colombia


I) Introduction:

1. Dear Madam Presiding Arbitrator, dear Members of the Arbitral Tribunal, my name is XX and today I joined by my co-counsels XX here on behalf of Respondent, the Republic of Colombia in these ICSID proceedings Claimant, Eco Oro Minerals Corp.

2. Today, we will structure our pleadings as …

1. Summary of Dispute:

3. Let me begin by providing an overview of the facts that have brought us here today.

4. This dispute arises out of environmental protection measures that Respondent adopted in connection with the paramo ecosystem in Santurbán. Claimant is now baselessly alleging that these measures deprived it of its mining rights under a concession contract. The concession contract was entered into between Eco Oro and INGEOMINAS on 8 February 2007 for the exploration and exploitation of a deposit of different precious metals and minerals like gold, silver, zinc, copper and tin.

5. This contract relates to the Angostura gold and silver deposits located in the Soto Norte region of the department of Santander, within the Vetas California gold district in Colombia.

II) Preliminary Matters: Jurisdiction

6. We begin by respectfully arguing that the Tribunal lacks jurisdiction to hear the merits of this case. We submit four reasons why this is so. First …, Second…, Third.. and Finally…

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II) Colombia has validly denied the benefits of Chapter Eight of the FTA to Eco Oro in accordance with art. 814(2) of the Treaty

8. The Tribunal lacks jurisdiction because Respondent validly denied the benefits of the FTA to Eco Oro. Respondent submits that art. 814(2) permits State parties to deny the advantages of the Treaty, including access to international arbitration, to companies which are owned or controlled by nationals of third States and have no substantial business in their State of incorporation.

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II) Eco Oro Is Not A Protected Investor Under The FTA, Because It Assigned Its Claims to Non-Canadian Nationals

10. The Tribunal lacks personal jurisdiction over Eco Oro because the true beneficiary of the claim is a Delware-incorporated US company (Trexs) to whom Eco Oro assigned the benefit of its claim in July 2016.

11. Look at art. 838 of the FTA

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II) Eco Oro Failed To Comply With Four of the Mandatory Conditions Precedent to Arbitration, Including Failing to Bring Its Claims Within the Limitation Period

13. The Tribunal lacks jurisdiction because Eco Oro has failed to comply with four mandatory conditions precedent set forth in art. 821 FTA. Failure to comply with the conditions in art. 821 results in nullification of Colombia’s consent to arbitrate.

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II) Eco Oro’s Claim Falls Outside the Tribunal’s Temporal and Subject-Matter Jurisdiction

15. First, Eco Oro’s claims relate to a prohibition on mining in the paramo areas which has been in force since 2010. This was before the entry into force of the FTA on 15 August 2011 and the dispute between the Parties therefore arose before this entry into force. Eco Oro’s claims therefore fall outside the temporal scope of the FTA.

16. Second, Eco Oro’s claims fall outside the substantive scope of the FTA. Respondent argues that art. 2201(3) of the FTA should be construed as providing that nothing in the FTA is to be read as restricting the Contracting Parties’ ability to adopt measures “necessary to protect human, animal or plant life or health” and for “the conservation of living or non-living exhaustible natural resources”. Therefore, Respondent did not consent to arbitrate disputes that relate to such measures and fall outside the scope of the covered measures, under Section A of the FTA.

17. Eco Oro’s claims fall squarely within the Environmental Exception of the FTA and therefore outside of the Tribunal’s jurisdiction. The measures were all necessary for the protection of human, plant and animal life, namely the paramo ecosystem and for the conservation of non-living exhaustible natural resources, namely water.

18. Opinion of the Court of Justice of the European Union that states that environmental exceptions in investment instruments can act as a bar to jurisdiction over claims concerning measures for the protection of the environment.

III) Substantive Claims

19. If this Tribunal were to find, against our primary submission, that it does in fact have jurisdiction to hear this case, we would like to submit the following arguments on the merits, contesting all of the allegations that Claimant has brought forward:

III) Colombia Did Not Unlawfully Expropriate Eco Oro’s Investment

III) First, the FTA establishes the primacy of environmental protection over trade and investment.

20. A good faith reading of the FTA proves that the primacy of environmental protection over trade and investment is clear.

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III) Second, Respondent did not expropriate Eco Oro’s investment

22. The measures complained by Claimant did not have an effect equivalent to direct expropriation as there was no deprivation.

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